- (1.) THE accused-appellant has preferred this appeal under Section 374, Cr. P.C. against the judgment of conviction and order of sentence dated 3-6-2008 passed by Additional Sessions Judge (Fast Track) No. 2, Jhunjhunu in Sessions Case No. 49/ 2006 (104/2006) whereby the appellant has been convicted for offences under Sections 363, 366 and 376, IPC and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 1000/- and in default thereof to further undergo simple imprisonment for two months for the offence under Section 376, IPC. rigorous imprisonment of five years and a fine of Rs. 500/- and in default thereof to further undergo simple imprisonment for one month for the offence under Section 366, IPC and sentence of rigorous imprisonment of three years and a fine of Rs. 500/- and in default thereof to further undergo simple imprisonment for one month for the offence under Section 363, IPC. All substantive sentences were ordered to run concurrently.
(2.) THE brief relevant facts for the disposal of this appeal are that on 22-6-2006 at 2.15 p.m.. the prosecutrix, P.W. 5 submitted a written report Ex. P9 before SHO Police Station. Kotwali, Jhunjhunu stating therein that when she and her younger brother Naveen were coming from their school at 12.15 p.m., the present appellant and one Shri Balbeer son of Shri Lalchand met them in the way and both of them came to the Bus Depot with them in the same taxi and when they reached at the bus depot both of them told her that her father is present at a medicine shop situated opposite to the hospital. Shri Balbeer took away her brother-Naveen on the pretext of getting him juice whereas the present appellant took her to a Hotel named "Naveen Hotel" and in the Room No. 106 of that Hotel the appellant committed rape on her. On the basis of written complaint submitted by the prosecutrix. FIR No. 188/2006 for offences under Sections 363 and 376, IPC read with Section 120-B, IPC was registered against the present appellant as well as against Shri Balbeer and after usual investigation charge-sheet was filed apart from the present appellant against Shri Balbeer and one Shri Naveen. THE learned trial Court framed necessary charges against the accused and in support of charges the prosecution produced oral as well as documentary evidence, whereas in his statement under Section 313, Cr. P.C., the appellant denied the allegation and evidence of prosecution and he specifically stated that father of the prosecutrix Pyarelal owed some money to his in-laws and to pressurize them he has been falsely implicated in case. Opportunity to produce defence evidence was afforded to the appellant but that was not availed, however, during cross- examination of prosecution witnesses certain documents (statements) were exhibited. The learned trial Court after evaluating and appreciating the evidence available on record and hearing both the parties convicted and sentenced the appellant by the impugned judgment and order dated 3-6- 2006 in the manner as has been stated hereinabove. Hence, the instant appeal. It is pertinent to note that the learned trial Court acquitted the accused-Balbeer and Naveen from the charges levelled against them. Heard learned counsel for the appellant as well as the learned Public Prosecutor. From the evidence available on record, it cannot now be disputed that the date of birth of the prosecutrix is 21-2-1990 and at the time of the incident her age was 16 years arid four months. During the course of hearing, the learned counsel for the appellant has not seriously disputed the fact that on the date, time and place of incident sexual intercourse between the appellant and the prosecutrix took place but the contention of the learned counsel is that the prosecutrix was a consenting party and as at the time of incident she was of more than 16 years, her consent plays a vital role and in the facts and circumstances of the case, the offence of rape punishable under Section 376, IPC cannot be held to be made out. In this regard, the learned counsel for the appellant submitted that from the evidence available on record, it is clear that the prosecutrix was closely acquainted with the appellant for past several months and before the incident also, they met with each other several times. It was also submitted that the evidence available on record indicates that the prosecutrix willingly went with the appellant to the Hotel Room and she made no resistance when the crime was committed and she levelled allegation of forceful intercourse only when the police arrived at the Hotel upon some information. The submission of the learned counsel for the appellant is that when the police found the prosecutrix and the appellant in a compromising condition, the prosecutrix at the behest of her father and other family members levelled false charge of rape. By referring to the statement of the prosecutrix recorded during trial, the learned counsel for the appellant submitted that according to her, when she and appellant came to the reception counter of the Hotel, co-accused-Naveen (acquitted by the trial Court) told the appellant in the presence of prosecutrix that the "act" should be finished within one hour as the Room No. 106 is hired to a customer and he can come at any time. According to learned counsel for the appellant when co- accused Naveen in presence of prosecutrix asked the appellant to finish the "act" within one hour, it means the prosecutrix was having knowledge that the "act of intercourse" is to be finished within one hour but even then she without any resistance went into the room with the appellant and this is also a clear indication of the fact that the prosecutrix was a consenting party to the act of intercourse. The learned counsel for the appellant also submitted that there are several major contradictions in the statements of prosecution witnesses and the prosecutrix improved and changed her version of the incident during trial from the version stated by her in her statement recorded under Sections 161 and 164, Cr. P.C. The learned counsel for the appellant prayed that the appellant is liable to be acquitted from the charges levelled against him. It was further submitted that if by any reason this Hon'ble Court arrives at a conclusion that the order of conviction is to be upheld, the sentence of imprisonment awarded by the trial Court for the offence under Section 376, IPC may be reduced and modified to the sentence of imprisonment already undergone by the appellant. It was prayed that the appellant is in custody since 22-6-2006 and he has already undergone imprisonment of more than five years. Referring to some judgments, the learned counsel for the appellant submitted that under the proviso appended to Section 376(1), IPC, the Court is competent to award sentence of imprisonment less than the minimum sentence of seven years' imprisonment prescribed by law. On the other hand, the learned Public Prosecutor by supporting the judgment of conviction and order of sentence passed by the trial Court, submitted that from the evidence available on record it cannot be held that the prosecutrix was consenting party to the act of intercourse. It was further submitted that the evidence available on record clearly indicates that the appellant on a false pretext took the prosecutrix in a room of a Hotel and without her consent and against her will committed rape on her. According to learned Public Prosecutor the mere fact, that the prosecutrix did not resist and she submitted herself before the appellant for sexual intercourse, does not means that she gave her consent. It was also submitted that the words spoken by the co-accused Naveen in the presence of the prosecutrix does not mean that the prosecutrix was knowing for what purpose the appellant is taking her in the room and by that reason also it cannot be held that prosecutrix was a consenting party. So far as the reduction of sentence to the extent of imprisonment already undergone by the appellant is concerned, the learned Public Prosecutor submitted that Section 376, IPC provides for a minimum sentence of seven years imprisonment and in the present case there are no mitigating circumstances so as to reduce the sentence awarded to a sentence lesser than the minimum prescribed.
(3.) I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. Before considering the evidence available on record, it would be appropriate to refer the legal position relevant for the disposal of this appeal, which is as follows : (i) there is a difference between submission and consent. Every consent involves a submission, but the converse does not follow and a mere act of submission does not involve consent. Consent of a girl in order to relieve an act of criminal character like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance the good and evil on each side, with the existing power and capacity to withdraw the ascent according to once's will or pleasure. A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. The consent, to be operative in negative criminality, must be a free consent. Consent on a part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge of significance and the moral quality of the act. but after having freely exercised a choice between resistance and consent. (ii) In a charge for an offence under Section 376. IPC burden of proof is on the accused to prove consent of the victim and it is - not for the victim to show that there was no consent on her part. (iii) The approach to be adopted by Courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity. The Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. (iv) Absence of injuries on the body of prosecutrix not necessary evidence of consent or non-resistance on the part of the prosecutrix. If the testimony of the prosecutrix inspires confidence then her evidence ought not to be rejected on the basis of minor contradictions and improvements. (v) The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused where her testimony inspires confidence and is found to be reliable. The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness, who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence in entitled to great weight, absence of corroboration notwithstanding. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. As has already been stated, there is no dispute that the date of birth of the prosecutrix is 21-2-1990 and at the time of the incident her age was 16 years and 4 months. The evidence oral as well as documentary available on record fully supports the fact. In my view from the evidence available on record this fact cannot also be disputed that at the date, time and place of incident sexual intercourse between the appellant and the prosecutrix took place. During the course of hearing learned counsel for the appellant also has not seriously disputed this fact and thus, the only point to be considered is whether the prosecutrix was a consenting party in the act. If from the evidence available on record it is found that the prosecutrix was a consenting party, offence under Section 376, IPC cannot be held to be made out as it is an admitted fact that at the time of incident prosecutrix was of more than 16 years of age. on the other hand, if the Court finds that the prosecutrix was not a consenting party or the intercourse was against her will, no fault can be found in the order of conviction passed by the trial Court. In the written report Ex. P9 which was lodged by the prosecutrix herself within one hour of the incident, it has been stated that when she and her younger brother were returning from their school, appellant and co-accused (acquitted by the trial Court) met them in the way and both of them also came to the Bus Depot in the same taxi and when they reached at Bus Depot, they told her that her father is present at a medicine shop situated opposite to the hospital and they can go with him and upon that she and her brother alighted from the taxi. It was also stated in the report that the appellant brought her in the Hotel on the pretext of providing her food and he committed rape on her in Room No. 106 of the Hotel. Thus, in the first information report, the prosecutrix very clearly made allegation that the appellant on a false pretext took her in the Hotel Room and committed rape upon her. From the allegation levelled in the report inference of consent cannot be drawn. On the other hand, the tone of allegation is clear indication of the fact that the appellant committed rape without her consent and against her will. In her statement before the trial Court also the prosecutrix has similarly deposed. She also stated that on the reception counter of the Hotel co-accused. Naveen was sitting who handed over the 'key' of Room No. 106 of the Hotel to the appellant and asked him to finish the act within one hour because that room has been fired out to a customer. The prosecutrix has explained that at that time she did not understand the meaning of the words 'act should be finished within one hour' and she along with the appellant went into the room and as soon as she entered in the room, the appellant hurriedly shut the door of the room and forced her to lie on the bed and despite her unwillingness, he removed her underwear and undressed himself and against her will using force committed rape upon her. She has further stated that after that the appellant helped her to put on underwear and as soon as he opened the door of the room, police arrived there and took both of them to the police station. Thus, in her examination-in-chief the prosecutrix has clearly stated that the appellant hurriedly shut the door of the room, forcibly made her to lie on the bed, despite her refusal, he himself removed her underwear and after undressing himself committed rape. In her cross-examination she denied the fact that she called the appellant several times on his mobile phone through the landline phone installed at her residence. She also denied the fact that she was closely intimated with the appellant since before the incident. She also denied the suggestion given in the cross-examination that on 16-6-2006 she and appellant were together for half an hour in Nehru Park situated opposite to the Court Building in Jhunjhunu. Even from the lengthy cross-examination of the prosecutrix nothing such has come out so as to hold that she was closely intimated with the appellant and she and appellant had met each other several times before the incident. From the evidence available on the record at the most it can be said that co-accused-Balbir is neighbour of the prosecutrix and appellant being a relative of co-accused, the prosecutrix was knowing but merely by that reason it cannot be held that the prosecutrix was having close intimacy with him since before the incident. Mere acquaintance of a person does not amount to close intimacy or friendship. Even if for the sake of arguments, it is admitted that the prosecutrix and the appellant' were having close intimacy, it does not mean that the prosecutrix was a consenting party in the crime. In her cross-examination the prosecutrix has admitted that she went to the Hotel along with the appellant and thereafter in Room No. 106 of the Hotel. She has also stated that she forbid the appellant from closing the door of the room, she also tried to open the door and despite her resistance, the appellant forcibly removed her underwear. The prosecutrix specifically denied the suggestion that the intercourse took place with her consent. She has denied this suggestion also that when the police arrived at Hotel, she felt sorry by saying otherwise her life may be spoiled and requested them that she may be allowed to go. She also denied the suggestion that she lodged the report on behest of her family members. In my view although, the prosecutrix was cross-examined at length but nothing has come out so as to indicate that she was a consenting party to the act of intercourse and it was in her knowledge for what purpose the appellant has brought her to the Hotel Room. ;